LexisNexis Workers' Compensation eNewsletter

Vol 1, Issue 12

Find Solutions & Strategies June 14, 2010

Structured Settlements 101

Medicare Secondary Payer Act has driven the use of

structured settlement annuities

In This Issue

-FEATURED ARTICLE: structured settlements

-LARSON'S SPOTLIGHT: average weekly wage, offset, mental injury, inmate, PPOs

-BLOG ROUND UP: fraud, VA, KY, MD, FL

-NATIONAL NEWS

-STATE NEWS

-WHAT'S NEW IN LARSON'S: third-party defenses

-LARSON 50% OFF SALE

-eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

Mark your 2011 calendars and get ready to celebrate 100 years of workers' compensation in our country. More details to follow...

Sincerely,
Robin E. Kobayashi, J.D.

LexisNexis Editorial & Content Development

robin.e.kobayashi@lexisnexis.com

Workers' Compensation, a PBS television event

Making History: Celebrating 100 Years of Workers' Compensation

"This is a story that all Americans need to hear... It's a story that began with immense human pain and suffering, transforming into a spirit of hope and compromise."

Five-time Emmy Award-winning producer Steven Boettcher and the Workers' Compensation Centennial Commission

To be aired Labor Day 2011

Web Poll In Progress

Medical treatment access and quality for workers' comp claimants in your state are:

Good - 33%
Fair - 0%
Poor - 67%

Vote at the LexisNexis Workers' Comp Law Community

Workers' Comp Profile

Jennifer C. Jordan, Esq. is General Counsel and a founding member of MEDVAL, LLC. Ms. Jordan's expertise in Medicare Secondary Payer compliance is recognized nationwide. She is currently a regular instructor for Lorman Education Services and a contributing author to nationally distributed publications such as the American Bar Association's Tort, Trial and Insurance Section magazine, The Brief. Additionally, she has been designated as an expert witness by the United States Department of Justice for her extensive knowledge of MSP issues. Ms. Jordan is the Editor-in-Chief of The Complete Guide to Medicare Secondary Payer Compliance, a LexisNexis publication that will be available in Fall 2010.

FEATURED ARTICLE: STRUCTURED settlements 101

Structured Settlements 101, by William B. Fazio, Settlement Consultant. > Read it

A Structured Settlement is an arrangement that is designed to compensate a claimant over time, rather than with a single lump sum cash payment. Over the past several decades structured settlements have been codified in US tax law and become a preferred technique in the settlement of injury claims. In recent years, compliance with the Medicare Secondary Payer Act has driven the use of structured settlement annuities. Structured Settlements 101 is designed to:

Enhance understanding of structured settlments
Encourage the use of structured settlements
Simplify the use of structured settlements

Larson's spotlight: 5 recent cases you should know about

Tom Robinson thumbnail Larson's Spotlight reports noteworthy workers' comp cases each week. This list was compiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

> Read the case summaries and court decisions.

#1 OH: Wages From Second Job May Be Used to Compute Average Weekly Wage

#2 ME: Statutory Maximum Must First Be Applied to Injured Worker's Wages Before Applying Offset for Pension Benefits

#3 LA: Gun Hoax at High School Was Insufficient to Support Teacher's Claim for Compensable Mental Injury

#4 IA: Inmate May Be Employee for Purposes of State Civil Rights Act

#5 LA: Appellate Court Refuses to Decertify Class in Dispute Between PPOs and Healthcare Providers

blog round up

Fraud Sign Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, Investi-gations 6/10/2010.Read it.

Virginia Court of Appeals Cites Rassp's "The Lawyer's Guide to the AMA Guides and Calif. Workers' Comp " as Authority on AMA Guides. Read it.

Kentucky Top Cases (updated 6/3/2010), by Marcus Roland, Roland Legal PLLC. Read it.

Maryland Workers' Comp Commission Holds Public Hearing on Emergency Regs for Medicare Set-Asides, by Jennifer Jordan, MEDVAL, LLC. Read it.

Florida Workers' Compensation in Review 2009-2010, by Robert Grace, Jr., James Greer, and William McCabe. The editorial consultants for Dubreuil's Florida Workers' Compensation Handbook explain the legal developments over the past year for Florida workers' compensation practice and the updates to the Handbook. Publisher's Note: The 2010 edition of the Handbook will be available in Sept. Read it

national news

> Insurers Say Drug Diversion Increasing, According to Survey
> Oil Spill Cleanup Causing Illness Among Workers
> Hallman Named EMPLOYERS CIO
> Lockton Adds Medical Director
> NCCI Posts Study on Medical Services by Size of Claim
> ASSE Urges Congress to Act on OSHA, MSHA Budgets
> Coalition Launches New Organization To Honor 2011 WC Centennial
> MSHA's Statement on Ruling and Citations Disputed by Massey
> OSHA Updates on Oil Spill Workers' Safety
> Six Ways to Control Transportation-Related WC Costs
> Old Republic and PMA Capital Announce $365M Merger Agreement
> OSHA Official Testifies About Worker Safety in Energy Industry

state NEWS

> AZ: Study Finds SCF Arizona Had $528.3M Impact on State's Economy in 2009
> AR: Injury During Snack Break Not Covered by Workers' Comp
> CA: Octuplet Mother Settles Workers' Comp Claim
> CA: Medical Board Reinstated 66 Convicted Felons During Past 10 Years
> CA: DWC Posts Proposed Revision to Inpatient Hospital Fee Schedule Rules for Public Comment
> CO: Pinnacol Audit Recommends 14 Areas for Change
> CT: Baseball Umpire's Hip Replacement Problems Reveal Kickbacks in Medical Profession
> CT: Second Report on Cancer Cluster at Pratt & Whitney Plants Released
> DC: Court Grants Preliminary Approval of $72.5M Settlement in Class Action Against The Hartford
> FL: DWC Holds Free Seminar on Tuesday for Pensacola Businesses
> FL: DWC to Hold Workshop on Proposed Rule Changes for Compensation Notice
> FL: DWC Proposes Rule Changes to Informational Brochures
> FL: CFO Sink Announces Wrap Up of Statewide Workers' Comp Sweep
> GA: Governor Signs Bill Allowing Guns in Bars, Parking Lots
> HI: Insurance Commissioner J.P. Schmidt Resigns, Joins Law Firm
> IL: AIG Ordered to Turn Over Records in Alleged Workers' Comp Fraud Suit
> IL: WCC Announces New Arbitrator Assignments
> KY: DWC Commissioner Shares Conference Presentation
> LA: Receptionist's Alleged Rape by Lawyer Not Barred by Exclusive Remedy Rule
> LA: DHH, DEQ Ask OSHA To Investigate Oil Spill Worker Conditions, Safety
> LA: DHH Releases Oil Spill-Related Illnesses Information
> LA: Gretna City Council Investigates Workers' Comp Fund as Slush Fund
> MD: MOSH Issues Record Penalty of $1M Against Poultry Processor for Safety Violations
> MI: WCA Says 11.66% of Initial Voluntary Payments Claims Disputed
> MI: WCA Says Pay Lag Still 2 Days More Than Required by Statute
> MN: Medical Board Reviews Proposed Rule Changes to Managed Care Plans, Surgical Implants
> MT: Montana State Fund Moves Into New "Green" Digs
> MT: LMAC's Recommendations for Workers' Comp Reforms Now Online
> NE: WC Court Published Injury Report for 2000-2009
> NV: DIR/WCS Post Summer Edition of Chronicle Newsletter
> NV: Legislative Subcommittee Agrees on Workplace Safety Proposals
> NV: Nevada Business Group Uses Monkey-Themed Ad Campaign to Attract California Business
> NV: Lawmakers Seek to Impose Hefty Fines and Penalties for Misclassification of Employees
> NJ: Dept. of Labor Indicates Imperial Casualty Has 50 Active Claims
> NY: Task Force Recommends Termination of Group Self-Insurance Program
> NY: Halt Queens Abatement Worker in Fraud Case
> NY: GSIANY Responds to Governor's Task Force on Group Self-Insurance
> NY: New Settlement of $712M Announced for 9/11 Responders
> NC: Bill Would Change Negligence Standard to Comparative Fault
> OH: Industrial Commission Procedural Change to Reduce Time on Appeal Process
> OK: Governor Signs Workers' Comp Bills on Adjuster Licensing Requirements, Claim Process
> OK: Governor Signs Bills Impacting Workers' Comp Court, Benefits
> OR: WCB Reports 2009 Administrative Law Judge Survey
> RI: Fraud Prevention Bills Await Governor's Signature
> SC: DOI Approves WC Loss Cost Filing Decrease
> TN: New Volkswagen Plant Employees Required to Do Physical Workouts
> TN: House Speaker Signs Bill 2940
> TX: Landmark $82.5M Verdict for Family of Man Killed After Natural Gas Plant Explosion
> TX: DWC Approves Renewal of Self-Insurance for 10 Companies
> TX: Blue Cross Blue Shield Sues Pfizer for Alleged Deceptive Drug Marketing and Illegal Kickbacks
> VA: Gov. Extends Disability Benefits for State Police Officers
> VT: Governor Signs Misclassification Bill
> WA: L&I Launches "Nailed" Blog to Fight Fraud
> WY: Task Force to Recommend Occupational Epidemiologist Soon

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what's new in larson's workers' compensation law

Lexis.com subscribers to Larson's Workers' Compensation Law can link to the chapter discussion below.

Find out more about how to become a Larson's online subscriber by contacting: Caroline.Conway@lexisnexis.com.

Third Party Defenses. Under most workers' compensation statutes, the third party suit-whether brought by employee or employer-is deemed to be primarily the employee's cause of action. Accordingly, defenses which would be available against the employee are usually available against the subrogated employer or insurer. This applies to the statute of limitations, unless modified by statute, and to the employee's contributory negligence. Conversely, when the employee is the plaintiff, the employer's concurring negligence is generally not a defense, and most cases reach the same result even when the employer is also the subrogee plaintiff.

Chapter 120, which discusses those third party defenses which may be interposed in such settings has been revised and updated. A substantial line of modern cases holds that the third party may not use as a defense any matter affecting the relations of employer and employee between themselves, and that therefore the statutory assignment of the cause of action to the employer cannot be raised by the third party.

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